The Transgender Non-Issue

May 16, 2016. Without any discernible public need, the federal, state and some local governments have taken up the cause of transgender use of public facilities traditionally segregated by sex, such as rest rooms and communal locker and shower rooms. “Transgender” here means individuals whose self-determined “gender identity” is different from the one reflected in their sexual organs and birth certificates.

Transgenders are estimated to be a proportion of the population, several digits to the right of the decimal point. Even among their small numbers there are no reports of widespread denial of needed access to a public rest room. The issue seems to have been entirely ginned up by culture warriors of both sides, not to deal with any real problem or need but to raise money and energize their supporters.

In one of the most prominent recent skirmishes the City of Charlotte NC passed an ordinance permitting people to use public rest rooms, corresponding to their “gender identity.” The State of North Carolina responded with a statute prohibiting such ordinances and went much further, requiring that persons use state restrooms corresponding to the sex stated on their birth certificate.

The NC statute would apply not only to transgenders but transsexuals who have had hormone and surgical treatment to give them the outward characteristics of the adopted gender. The law further prohibited anti-discrimination ordinances protecting not just transgenders but gays. The Obama Justice Department then sued North Carolina alleging that the state law was in violation of Federal civil rights statutes.

Last week the U.S. Department of Education’s Office for Civil Rights (OCR) issued “guidelines” requiring schools to permit transgenders to use the rest rooms and locker rooms of their self-determined gender.

Various federal Civil Rights statutes prohibit discrimination in public accommodations and public education (or private education receiving any federal funding) on the basis of race, color, religion, national origin or sex. Generally those statutes make an exception for sex discrimination in public rest rooms. The essence of the Obama administration’s argument is that “sex” means self-identified “gender identity.”

The OCR claims its “guidelines” are only advisory but the Justice Department has acted to enforce the bureaucracy’s interpretation, using financial sanctions to require states to comply with the Federal interpretation.

Last year a transgender high school student in Palatine Illinois, who self-identifies as a female, wanted to use the girls’ locker room to change for physical education and using the swimming pool. The school had already permitted the student to be treated as a female in all other respects.

The U.S. Department of Education’s Office for Civil Rights (OCR) insisted that the school had to permit the student to use the girls’ locker room. The OCR rejected the school’s compromise offer to permit the student to use the locker room so long as the student was required to use a privacy curtain. The school finally yielded to the OCR requirement and now parents have sued the school district and the U.S. Department of Education.

Until now strong social custom and occasionally law have segregated group rest rooms and public locker and shower rooms by male and female sex. No definition of these terms has ever been thought necessary. Now the OCR appears to argue for definitions that are counterintuitive, to say the least.

The issue seems to turn on the question of whether the words “sex” in the discrimination provisions of the Civil Rights statutes include a person who is physically one gender but believes that he or she is actually the opposite sex.

Government functionaries have long turned language on its head.

Statutory prohibitions of racial discrimination have been argued to permit or even require “beneficial” racial discrimination, that is, affirmative action.

The legal definition of marriage, stated by President Obama at the time he entered office which had been held generally from before Western civilization was rather quickly modified from the union of a man and a woman to one of two persons of any gender.

Now the legal definitions of “sex,” “gender,” “male” and “female” which have been accepted since before people knew there was such a thing as a definition are being argued to mean not a fact based on one’s sexual organs but a legal status based upon a self-determination. In other words, being a man or woman is not a matter of biological fact, but of opinion, like being a Republican or a Baptist.

The difficulties arising from transgender use of sex-segregated facilities are different in public rest rooms and communal showering and locker facilities in schools.

Public Rest Rooms

Enforcement of segregation by sex in public rest rooms is effectively performed in the first instance by fellow customers, operators of the establishment and only rarely by police. Exceptions for persons assisting children or the disabled are permitted. Persons of ambiguous appearance are watched but not usually interfered with. An obvious male entering a ladies room would be challenged. Children should be watched closely in the rest rooms in any event.

This social compact is the best way to govern the use of rest rooms. There has been no showing of a need to change any of this.

The militant social left argues but has not demonstrated that transgender individuals require a legal right to enter a chosen public rest room. It is well nigh blasphemous to equate this invented need with the civil right movement of the 1960’s. It demeans that movement to gain access to truly public facilities, restaurants hotels and schools, not to mention the ballot box, to compare it to requiring an apparent male to use the men’s room.

The militant social right, on the other hand, argues the necessity of more specific legal protection from transgenders entering rest rooms designated for the opposite biological sex. They paint lurid pictures of male perverts molesting little girls in the ladies room, apparently preferring to confine the molesters to the little boys in the men’s room.

“The starkest difference is the geography of the facility, which makes the controversy even more strained. In the ladies room, we do not stand in the open, but have small individual stalls. And what happens in the stall stays in the stall. I have used facilities in Provincetown where I would not take a 50-cent bet on the gender of others waiting in line with me and emerged unscathed as we all enjoy our privacy when in use.”

Transgenders will use the private stalls because that’s all there are in the ladies room and all they would be able to use in the men’s room. There may be an increase in raised toilet seats encountered in the ladies room.

As for male perverts hanging around ladies rooms to molest the customers, there is no indication that actual transgenders pose any danger to others. Rather, it is suggested, perverts will pretend to be transgenders to prey on women in the ladies rooms. The present societal safeguards I describe above will be sufficient to prevent this from occurring with any more frequency than they have historically.

It should be noted that sexual crimes, even murders, have been committed in rest rooms. Surely someone inclined to commit such an offense will not be deterred by violating an ordinance governing use of the rest room.

Communal School Facilities

Communal facilities for the use of students in schools present quite a different situation. Participation in physical education and use of the communal locker and shower rooms is not optional and students are under the control of faculty and administrators in a way that adults using public facilities are not.

The argument I saw the Superintendent of the Palatine Illinois school system make for permitting transgenders to use the communal facilities for the opposite biological sex was that transgender boys were often bullied in the boys’ locker room. Bullying has always been a problem in schools. Dealing with it is one of the ways people develop life skills. Administrators and faculty seem much more inclined to address it than those of old. However, administrators who cannot deal with it by some method other than having students with penises shower with the girls should find another line of work.

To avoid hurting the feelings of a tiny group, the social activists of the left want to subject young women in public locker and shower rooms to submit to what has heretofore been the criminal offense of Indecent Exposure. It is very politically correct to try to prevent a young transgender student from feeling stigmatized as “different.” It is hard to imagine anything more different that showering or changing with a group of girls, being the only one with a penis.

A reasonable response was the compromise proposed by the school and rejected by the US Department of Education OCR that the student be permitted to use the girls locker room on condition that she be required to use a curtained off changing area. The student was willing to use the curtained off area, but the OCR would not accept it as a requirement, somehow concluding that it would be a violation of Title IX prohibiting sex discrimination.

With school communal facilities, as with public rest rooms, the best way to deal with transgender use is to leave the decision-making to the schools, those closest to the situation and responsive to their customers.

The best way for all levels of government to deal with the issue is – not at all. What some are trying to make a social issue should be treated as one of economics. Let the market decide. The markets are customers and employees of businesses and parents and students at schools. The culture warriors, right and left, are trying to create a supply of new laws where there is no demand.

Government abstention, public tolerance and understanding and application of economic principles might just produce a peaceful result.